Renwick v. Williams

Mason, J., delivered the opinion of the court. This action was instituted by the appellant, to recover the amount of a promissory note for two thousand dollars, drawn by the testatrix of the appellees, in favor of William Chase Barney, and by him endorsed, after it was due, to the said appellant. The note, its execution and endorsement were established, and upon these facts the plaintiff rested his case. The first-question which was raised in the trial below, related to the competency of the witness Mrs. Mary Barney, who was offered upon the part of the defendants.

She was objected to on the ground of interest. It was assumed in argument by the appellant’s counsel, that Mrs. Barney was the daughter of Mrs. Hannah K. Chase, and as such was a distributee of her estate, and was therefore interested in the result of any suit, which like the present, might diminish the assets of the estate. It seems to have escaped the notice of the counsel on both sides of this case, that it no where appears in the record that the witness whose testimony is objected to, was the daughter of Mrs. Chase. It is true that the witness states that she is the mother of William Chase Barney, and that he is the grandson of Mrs. Chase, but from these two facts it does not necessarily follow that Mrs Barney was the daughter of Mrs. Chase.

Non constat, but Mrs. Barney’s husband may have been the son of Mrs. Chase. This-court cannotlook beyond the record to conjecture facts, and where a witness is objected to, upon the ground of interest, that fact-must affirmatively and distinctly appear in the record, otherwise this-court cannot assume it. In this view of the particular question before us, it becomes unnecessary to decide upon the regularity of the exception as to this point. The first ground- of objection raised by the appellant to the ³⁶³ defendants’ prayers, related to the insufficiency of the proof to establish the facts assumed in them.

We will not pause to consider this much vexed question in the present case, for admitting that the proof out of which the two preceding questions arose was free from objection, and was sufficient to establish the facts sought to be proved, namely, that this was an accommodation note, and that it was endorsed to the plaintiff after it fell due, still, the existence of those facts would not avail to defeat the present action. It is true, as a general rule, that in all cases where a note over-due is endorsed, the endorsee takes it subject to all the equities of the maker, and it is always competent for the defendant in such cases, whether as against the payee or holder, to prove either a want or failure of consideration. Wyman vs. Gray, 7 Har. & John., 415. But it appears that accommodation notes, as they are termed, constitute an exception to this rule.

Cases of the highest authority recognise a wide distinction between accommodation notes or bills, and those which are wholly without consideration or fraudulent, and as such nudum pactum in law. Some of the cases go to the length of asserting, that